139 F.3d 909
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
John Joseph YELLOWMAN, Defendant-Appellant.
United States of America, Plaintiff-Appellee,
v.
John Joseph Yellowman, Defendant-Appellant.
Nos. 97-10315, 97-10316.
D.C. No. CR-95-00039-RGS.
D.C. No. CR-95-00394-RGS.
United States Court of Appeals, Ninth Circuit.
Submitted February 9, 1998.**
Decided Feb. 19, 1998.
Appeal from the United States District Court for the District of Arizona Roger G. Strand, District Judge, Presiding.
Before PREGERSON, CANBY and LEAVY, Circuit Judges.
MEMORANDUM*
John Joseph Yellowman appeals his conviction pursuant to two guilty pleas in two separate indictments to two counts of second degree murder within the confines of the Navajo Indian Reservation in violation of 18 U.S.C. §§ 1153, 1111 and 2. Yellowman contends that the district court erred in sentencing him pursuant to the Guidelines when it departed upward five levels.
The government contends that Yellowman waived his appellate rights as part of his plea agreement. At the plea hearing, however, the district court advised Yellowman that he retained some appellate rights, and the prosecutor did not object to the district court's statements. Pursuant to United States v. Buchanan, 59 F.3d 914, 918 (9th Cir.), cert. denied, 516 U.S. 970, 116 S.Ct. 430, 133 L.Ed.2d 345 (1995), we conclude that Yellowman did not waive his right to appeal his sentence.
Yellowman contends that the district court erred in departing upward based on criminal purpose pursuant to U.S.S.G. § 5K2.9, and use of unlawful restraints pursuant to U.S.S.G. § 5K2.4. In light of the circumstances of these two murders, the district court did not abuse its discretion in departing upward from the calculated guideline range. See United States v. Sablan, 114 F.3d 913, 916 (9th Cir.1997) (en banc); Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 2046, 135 L.Ed.2d 392 (1996) (district court's decision to depart is entitled to substantial deference).1 Accordingly, the district court is
AFFIRMED.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a); 9th Cir.R. 34-4. Accordingly, Wells's request for oral argument is denied
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
The government's motion to strike the reply brief and attachment is denied